Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Clause 204 - Meaning of ''specified offence'' etc.

Simon Hughes: I beg to move amendment No. 893, in
clause 204, page 114, line 8, leave out 'a specified offence' and insert 
 'of a serious sexual or violent nature'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 894, in 
clause 204, page 114, line 8, at end insert— 
 '( ) it is of a serious sexual or violent nature, and'.
 No. 895, in 
clause 204, page 114, leave out line 14.
 No. 900, in 
clause 209, page 117, line 24, leave out 'relevant' and insert 'serious'.
 No. 902, in 
clause 209, page 117, line 33, leave out subsection (4).

Simon Hughes: This is the first of the Committee's debates on chapter 5, which deals with dangerous offenders. This is an issue of significant public importance, and people have strong views about the best way to deal with dangerous offenders. I hope that, in the course of debates on amendments to clauses 204 to 216 and to schedule 11, which lists the offences, we will be able to probe the Government's thinking on the subject. We should have an honest debate about sentencing—about what works and what is good and effective both for defendants and for victims.
 Amendment No. 893 would remove the phrase ''a specified offence'' that triggers the list of offences in the schedule, and replace it with a generic definition. Amendment No. 894 would do the same later in the clause. Amendment No. 895 would remove the line that states that the ''relevant offence'' has the meaning given in section 209(4). The result would be clearer and simpler definitions. Perhaps the most important change would be made by amendment No. 900, requiring that an offence be serious. 
 The intention is to debate what sort of offences should trigger the dangerous offender provisions, and to consider what thought has been given to the subject since the relatively recent amendments to the law made by the Powers of Criminal Courts (Sentencing) Act 2000. Section 109 of that Act deals with life sentences for serious second offences, and section 85 deals with sexual and violent offences and licences. It is not long since Parliament last considered the matter, but I shall suggest two or three points that we might wish to take into account when considering the definition. 
 I am content that serious offences are defined, and that they include violent offences and sexual offences. If those two categories are to be treated differently, however, we must explain why. Serious violent and sexual offences have always been defined as the two types of serious offence, but the pathway is different for the two categories, and we must explore the logic behind that. 
 The second fundamental question is whether it is appropriate to define serious sexual and violent offences by means of a list of offences, and we shall come to the relevant amendments later. The list is very long and includes offences such as assault, which the lay public would not, in the normal course of things, regard as a serious sexual or violent offence. Other offences, such as abandoning children, female circumcision and assault occasioning actual bodily harm, might be seen as forming an entirely different category, and it might not be thought appropriate for them to trigger the dangerous offence provisions by themselves. They may in part be the product of a disturbed mind, or they may be a relatively minor second offence. My proposition to the Minister is that we include the general definitions of serious violent and serious sexual offences, but leave it to the court to determine the consequences—they should not be triggered in advance by a list. The court can then deal with the range of extended sentence and extended supervision for which the Bill provides. 
 The third point—we will debate the detail later—is that subsequent clauses provide for the treatment of offenders under 18 to be subject to a similar set of arrangements to that for offenders over 18. However, there are strong grounds for saying that we should not include such automatic consequences. We should always assume that those who commit offences when they are under 18 will have the benefit of a review when they become adults. We should not presume that their adulthood will be shaped by the mistakes, offences, behaviour and characteristics of their youth. We should not condemn those who are convicted of serious offences as youngsters to the same length and inevitability of punishment as adults, who are much more responsible for themselves. 
 One or two other issues arise from the way in which we define serious offences. There is a real debate to be had about whether it is better to have a definite term of imprisonment, followed by an indefinite term of supervision, which may or may not be in custody, or to have an indefinite sentence at the beginning. I do not come to the issue with any theological view, although certainty is often better than uncertainty from the victim's point of view. In some ways, not knowing when someone will be released is a worse punishment than knowing the punishment. However, it is often impossible to predict someone's condition when the sentence is passed and come to a view about when it will be safe to release them into the community. Having taken advice over recent years, I have formed the view that it is better for such things to be determined by the court, rather than by people working in secret on bodies such as parole boards, no matter how good or well informed they are. 
 If a case is in the realm of serious violent or sexual offences and the evidential base at the time of sentencing shows that it is impossible to predict when someone will be safe to release into the community, the court has a duty to serve the public interest by ensuring that there not be an automatic release into the community. In such cases it might be better to say, ''We cannot at the moment say when it will be suitable to release this person. This is a very serious matter. They have been and are a risk to the community, and might still be a risk in five or 10 years' time. Therefore we shall judge whether it is appropriate to release them back to the community at that time by bringing the matter back to the court and having the court hear the evidence of those who have been dealing with that person's medical, mental and psychiatric condition.'' That would effectively be to have what now happens at the Parole Board happening at court, so that the public can see that the decision is taken in an open and accountable way. 
 I do not disparage or undermine the work of the Parole Board—I am about to spend some time, at its invitation, sitting in on the process that it carries out of reviewing cases, to which I am looking forward very much. However, the Parole Board suffers from a disadvantage in that that process is not accountable in a full, public way. We should consider whether the process leading to the decision on whether someone is fit for release, made on the basis of the evidence of their behaviour in prison, of the results of their medical treatment and of their psychiatric and psychological assessments, should take place in open court. How we define which offences trigger the dangerous offenders provision gives rise to such issues. I accept that public protection requires that there be a category of offenders for whom the normal sentencing regime cannot apply. At the time of sentencing there should be additional provision for such offenders, and there should be protection at the end of that sentence. I am not satisfied that that happens at the moment in a way that commands public confidence. However, the legislation should not be over-prescriptive, and huge and uncertain sentences should not be given. Matters should proceed in the normal, accountable way through the courts, whether involving the original judge, or another judge sitting in the same court years later.

Hilary Benn: Good morning, Mr. Illsley.
 The hon. Gentleman gave a helpful introduction to some of the issues raised by this chapter, which is designed to deal with those circumstances that we all experience currently. One of the responsibilities of my post is to write to my colleagues from time to time to notify them of the release of a dangerous offender—I used to receive such letters myself, and I now send them out. Although such offenders have come to the end of their determinate sentence, the consensus is that the risk that they present to the public remains. Therefore we try to construct licence conditions and supervision arrangements in order to maximise the 
 chances of protecting the public from that continuing dangerousness. As we know from certain cases, however, that does not always work. Victims and those with responsibility for oversight of the system find those cases in which someone who is in essence generally agreed to pose a risk, is released at the end of their sentence and then commits another offence, the most difficult to deal with. People legitimately ask why the system did not protect them from that individual. That is what these provisions are all about. They are based on the essential premise that decisions about release should be based on an assessment of risk—the risk presented to the public—in exactly the same way as a parole board currently assesses risk in relation to mandatory and discretionary life sentences. 
 The hon. Gentleman asked whether it might not be better to have a system of indefinite terms rather than definite terms followed by indefinite supervision. The Government believe that sentencing for public protection is the right approach because it ensures that individuals will not be released until an assessment of the risk that they present to the public has been made and until it has been decided that that risk is sufficiently reduced. Surely, from a victim's point of view, it is more comforting and reassuring—in so far as one can comfort and reassure victims of sexual or violent crimes—to know that the offender will not be released until they are assessed as no longer presenting a significant risk than to know that the offender will be released after a certain time but that they will then be subject to supervision arrangements, which, in truth, describes the current situation. We try as best we can to ensure that those supervision arrangements cover the dangers, but they do not always work, which is why certain provisions have been included in the Bill. 
 On the question of who is the best person to assess risk, parole boards have a considerable amount of experience in dealing with the problem. Their record on making difficult judgments and performance in getting them right have been improving and are continuing to improve, and the reconviction rate of those who have been released is now at a record low level. From memory, in the mid-1990s, the reconviction rate was about 7 per cent., whereas the rate is now down to a little more than 3 per cent., although parole boards are releasing a higher proportion of the cases that they consider.

Simon Hughes: I accept what the Minister says about the figures and, as I made clear, I do not undervalue the job of parole boards. Does he accept, however, that there is one inevitable disadvantage, which is that the process takes place behind closed doors with no apparent public accountability?

Hilary Benn: Yes, I accept that the process takes place in private. Of course, extensive information is placed before the board—

Humfrey Malins: It is confidential.

Hilary Benn: Indeed, that is the case. As the hon. Gentleman says, much of the information is confidential because it covers the circumstances of the person in question, as well as their history, possibly going back to their childhood. It would not be possible
 to make all that information public, and in the absence of all the information, how could anyone make an assessment?
 I recognise the difficulties and acknowledge the point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes) about transparency and public confidence. Sometimes, the public do not like it either way. Whether the board does or does not grant release, people assume that its decision was or was not fair on the basis of very limited knowledge about the offender's circumstances and history. However, for the reason just given by the hon. Member for Woking (Mr. Malins), it would not be possible to make such decisions in the public arena. On accountability in a wider sense, the board must satisfy the public that the systems work and that it is doing a more effective job—as demonstrated by the figures that I have cited—of balancing the absolute requirement to make an effective assessment of risk against the wish to allow those who have changed and whose risk has been reduced to show that they are capable of living in a different way and getting on with their lives. 
 I recognise that the amendments are probing. It is better to set out clearly, as the clauses and the schedules do, the offences that can be taken into account for the purposes of considering the application of the Bill. We prefer the clarity offered by the schedule. It will be clear which offences fall under the scheme and which do not. That is important as a matter of principle. I understand the intention of the hon. Member for Southwark, North and Bermondsey, but the difficulty with the wording of the amendment is that it requires us to define ''of a serious sexual or violent nature''. 
 My second reason for resisting the amendments is that we would not want to raise the threshold for the sentence of public protection to a higher level, as it is our intention that all offenders who have committed a sexual or violent offence carrying a maximum sentence of 10 years or more, and who have been assessed as dangerous, should, in the interests of public protection, receive the new sentence. It is important in debating whether it is important, as the Government believe, to list the offences in schedule 11 or to adopt the alternative approach advanced by the hon. Gentleman, to hold on to what it says in clause 205(1)(b)—the court has, in all cases, to be of the opinion, having regard to what the trigger offences are, 
''that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''
 That is the protection. There is a trigger system that is clear about what is covered and the court must apply that test, the precise wording of which we shall debate shortly. The Government believe that the combination of the court's assessment of 
''significant risk of serious harm''
 and the schedule will give a framework on which we can make the provisions work.

Simon Hughes: I completely understand that it is not just a list, but a list plus criteria. It is right that there should be criteria. Does the Minister accept that there are two weaknesses in putting lists of offences in legislation? First, they rapidly become out of date and have to be amended and, secondly, they have the potential to be politicised—the political offence of the day, week or year can be added. It is a relatively cheap way of adapting the criminal justice system. If the criteria are always to apply, what is wrong with allowing the courts to determine whether a certain offence should qualify as a serious violent or sexual offence?

Hilary Benn: The difficulty is that different courts might interpret that in different ways, affecting the trigger. The hon. Gentleman's point about the transparency of the process reinforces the case for clarity, which schedule 11 provides. As we have learned during these debates, there is no guarantee that our successors will not change the offences and add to the list. The system will have to cope with that. All that we can do is to list the offences that we are aware of in order to try to cover all eventualities. There are also some technical deficiencies in the amendment, but I recognise that it was intended to be probing, and I hope that I have given the hon. Gentleman some reassurance.

Simon Hughes: I am very grateful to the Minister. My amendment was a probing amendment. We must deal with 13 clauses between 9.10 am and 11.25 am, so to assist the Committee I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 683, in
clause 204, page 114, line 12, leave out 'ten' and insert '14'.
 I can tell the Minister straight away that this is a probing amendment; unless the Opposition are seriously provoked, it is unlikely that we shall press it to a Division. The Minister is not in the habit of severely provoking us, so I think that this will be more of a probing morning. 
 I pause, Mr. Illsley, to tweak the Minister's arm a little. Unless I am grievously mistaken, the Government tabled more than 150 amendments to their own Bill on Thursday and Friday of last week. That was not especially helpful to those of us who read slowly. Moreover, I cannot help but feel that Parliaments nowadays tend to pass a law one year and change it the next, which is a pity. The Powers of Criminal Courts (Sentencing) Act 2000 was passed not very long ago, and changes to extended sentences were made two years ago. Now we are changing the law again. This Bill is an example of how we sometimes rush so fast that we find ourselves changing the law too soon. 
 The purpose of my amendment is to change subsection (2)(b)(ii) to make offences trigger offences under the schedule. We are dealing with dangerous offenders, so there are some important general issues. However, my amendment deals with a specific point. Under the Bill as drafted, an offence becomes a serious offence if it is a specified offence and if it carries a 10-year sentence. There are no fewer than 62 specified 
 violent offences in schedule 11, and 36 specified sexual offences. I have concerns over whether 10 years is an appropriate level to set because, under clause 205, if one commits a serious offence and the court thinks that 
''there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'',
 the sentence becomes an indeterminate or life sentence. 
 The first principle is that that sentencing provision is draconian. It is tough, and I imagine that it would be used sparingly, and for limited offences. I propose that it would be more appropriate to raise the threshold slightly to make a serious offence one that is specified and that carries a sentence of 14 years rather than 10. 
 In schedule 11, some offences are caught by the 10-year rule. There are some that would not be caught by the 14-year rule, but some would be. However, many offences in the schedule do not carry a sentence of either 10 or 14 years. I had a look at one or two, and we shall debate them later. Interestingly, although a section 18 arrestable offence—grievous bodily harm with intent—carries a life sentence, the lower form, which is a section 20 offence, carries five years. Section 20 offences can sometimes be very serious. ABH carries a five-year sentence and arson carries life. However, what I found most interesting was the offence of threats to kill: it carries a maximum penalty of 10 years. If the amendment is accepted, a threat to kill would incur a sentence of 14 years, not 10. The offence of threat to kill is often, in my experience, tried summarily and not punished with imprisonment. That is because the common-or-garden offence of threat to kill is regarded as one made in the heat of the moment during a domestic fracas. Someone may say, ''I'll get you for this; you are a dead man'', only to find himself charged with having made a threat to kill. It sounds serious, but in real terms it is usually not. 
 Is there an argument for my proposition that we should raise the 10 years to 14? The Bar Council thinks so. It has reservations about the clause; it believes that 10 years is too low a maximum. It compares and contrasts the types of offence in the 10-year range with those in the 14-year range or life. Maximum penalties err greatly on the side of the worst-case scenario. The Bar Council believes that 14 years is a less inappropriate figure. We must ask ourselves how often such measures will be used by the courts. The answer is very rarely indeed. The clause envisages the maximum penalty for an offence not being deemed sufficient by the courts. What research have the Government done into how often the maximum sentence for an offence is imposed by the courts? My experience is that that happens only rarely. One can hardly think of any occasion when a maximum sentence has been imposed. When it does happen, once in a blue moon, it makes the headlines. I wonder whether the provisions in the clause will make a material difference to the sentencing practices of the courts, given the strong powers available to them. 
 It is a narrow amendment, which recognises that we are dealing with a draconian power that will be used sparingly. I hope that the Minister finds merit in my 
 argument, which is supported by the Bar Council among others, that it might, in a specialised case like this, be more appropriate to have the definition read that an offence is a serious offence if it is a specified offence under schedule 11 and that it therefore carries a 14-year sentence rather than a 10-year one. Debates on whether the schedule will be extended to cover other offences may come later, but for the moment I leave that thought with the Minister. I hope that if the Minister rejects the amendment he will explain why.

Simon Hughes: May I ask the Minister to give us information on present practice and on the implications of the 10-year maximum in the clause and the 14-year maximum proposed in the amendment? They are well-known alternatives, as both are used by the courts. I ask because everyone presumes that the provision will be triggered only in exceptional cases. I do not have a figure in my mind for how often the maximum sentence is imposed. However, as the hon. Member for Woking said, it must be almost never. It is extremely unusual—leaving aside mandatory life sentences. If the Government intend the provisions to apply only in the most exceptional cases, it is important to consider whether 10 years is the right cut-off point, or whether 14 years, with the inevitable amendments that the hon. Gentleman suggested, would be right.
 Have the Government obtained any assessment in relation to the two obvious questions: how many people a year could be expected, from the best predictions, to receive extended sentences; and what would that mean for the Prison Service, translated into people per year? As the people in question would be likely to be in prison for a long time, although there might not be tens of thousands of them, prison places would be affected.

Hilary Benn: The hon. Member for Woking, in his usual gentle way, chided us for the multiplicity of Government amendments. He will, I think, recognise that the vast bulk of them are consequential drafting amendments. However, I do not accept his argument. I know that it can become difficult to follow matters, but if a Committee's part in the legislative process is listening to arguments about a Bill and engaging in debate—a process that, surprise, surprise, continues in Government—the worst thing that can happen is for Governments to say that they will stick with what they have published, and not budge, because their priority is not to open themselves to the sort of charge made by the hon. Gentleman. It is better to get things right. That may involve reflecting on the process as we go and deciding whether the provisions are right, but in my view that results in better legislation than a refusal to budge an inch from what is published, for fear of being subjected to the gentle criticism that I have just experienced.

Humfrey Malins: Of all the Ministers I have come across, I find it hard to think of one who listened as well as the Minister has in this Committee. He is a tremendously good listener. A problem, however, is that, having listened, he never accepts the argument.

Hilary Benn: That may have something to do with the quality of the argument—but I do not direct such an unkind criticism at the hon. Gentleman for one second.
 Before I deal with the substance of the amendment, I want to answer the question asked by the hon. Member for Southwark, North and Bermondsey about the impact that the provisions will have. It will depend on how the courts, having regard to the trigger offences and the thresholds that we have set, operate the assessment of 
''significant risk to members of the public of serious harm''.
 That is quite difficult to know. However, we have assumed in our modelling that over time—because it would take time for the effect to develop—there would be an additional 900 in the prison population. That is only modelling, of course, and the honest answer is that it is difficult to assess the effect, because it depends on the courts' interpretation of the provision.

Simon Hughes: Obviously, it is a gradual process. By what time does the modelling suggest a potential number of 900? Would it be after five years or 10 years?

Hilary Benn: I will have to check on what assumptions were used in the modelling, and will let the hon. Gentleman know, if that is all right.
 In essence, we think that 10 years is a more appropriate period than 14, although I understand the argument advanced by the hon. Member for Woking. If the amendment was made, the sentence of public protection could not be passed for dangerous offenders who committed offences such as threatening to kill—an example given by the hon. Gentleman—indecent assault, maliciously administering poison so as to endanger life, or causing death by dangerous driving, which is a topical subject. 
 All such offences carry a maximum sentence of 10 years. If we give the court the ability to have regard to those offences and then to apply the test in clause 205(1)(b), we need to maintain the trigger at the 10-year maximum. A 10-year threshold is not disproportionately punitive to those who have committed offences that carry a maximum sentence of 10 years, although I acknowledge what the hon. Gentleman said about the infrequency with which the maximum sentence is applied. 
 The ultimate safeguard against disproportionate impact remains the judgment of the court, having regard to that threshold. I have twice advanced the argument as to why the Government believe that it the right threshold. It is for the court to make a judgment about the significant risk of serious harm. If a court judged that there would be a significant risk of serious harm to members of the public if an offender was to be given another opportunity to commit further offences, a lay person would ask how the court intended to protect him from that risk. 
 That brings me back to the question that I asked at the start: whether release should be based not on an assessment of the risk but on the expiry of a determinate period—at which point offenders come 
 out, even though we know from sad experience that they are just as dangerous as when they went in.

Humfrey Malins: I thank the Minister for his helpful words. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 204 ordered to stand part of the Bill.

Schedule 11 - Specified offences for purposes of Chapter 5 of Part 12

Simon Hughes: I beg to move amendment No. 903, in
schedule 11, page 212, line 5, leave out paragraph 11.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 741, in 
schedule 11, page 212, line 15, leave out paragraph 17.
 No. 742, in 
schedule 11, page 212, line 16, leave out paragraph 18.
 No. 743, in 
schedule 11, page 212, line 17, leave out paragraph 19.
 No. 744, in 
schedule 11, page 212, line 18, leave out paragraph 20.
 No. 904, in 
schedule 11, page 213, line 22, leave out paragraphs 43 to 46.

Simon Hughes: The amendments are all probing; they deal with different items in schedule 11 to test how the list was compiled. Part 1 of the schedule lists violence offences, of which there are 62; and part 2 lists sexual offences, of which there are 36. One offence in each category is
''aiding, abetting, counselling, procuring or inciting the commission of''
 any of the other offences listed. 
 The offences mentioned in the amendments were chosen to test the water. The first, in paragraph 11, is the offence of abandoning children, under section 27 of the Offences Against the Person Act 1861; other amendments deal with further offences under that Act. The last amendment would leave out the offences under the Prohibition of Female Circumcision Act 1985; riot under the Public Order Act 1986; and violent disorder and affray under sections 2 and 3 of the same Act. The amendments tabled by the hon. Member for Woking list other offences. They are sample counts to test the proposition. 
 Do the Government believe that the offences in the list meet the threshold of seriousness that is necessary for someone to be defined as dangerous under clause 209? For example, a neglectful parent, who has a conviction under paragraph 11 for abandoning children, might later be convicted of affray under paragraph 46, but would that make that person dangerous? Such a person may have many defects and would clearly have broken the law, but neither event would make them dangerous according to the definition of that word that is generally understood. Although clause 209 contains a reasonableness test, which I understand, being convicted of such an offence 
 would take a person into a certain league, so that they could receive an extended sentence under clause 207. Of course there are some complications, of which I am sure the hon. Member for Woking is aware. For example, certain offences, such as affray, carry a maximum sentence of three years, and certain clauses, such as clause 205, would not apply to those cases because a higher sentence is necessary to trigger them. I think that that is right, but I stand to be corrected. 
 However distasteful we might find them, some of the offences listed could be regarded as ideological offences. For example, female circumcision might be thoroughly distasteful to everyone in Committee, but it might be committed as a result of the pressures of a strong cultural background. In such cases, it may be inappropriate to define a person as dangerous, so I wonder whether all the implications have been thought through. I have not checked the figures, because I have not asked a parliamentary question about it recently, but there cannot be many convictions for female circumcision. However, I am unsure whether those convicted and punished for that offence would be any less likely to reoffend if the act was carried out on the basis of a strong cultural or faith tradition. In some cases, punishment will not necessarily do any more than force hesitation and will not force a person to accept that what they did was wrong. 
 Affray, listed at paragraph 46, encompasses a whole range of activities. There is very dangerous affray—we saw some of that on local election day in my constituency last year—but affray can also be much less serious. The definition under the Public Order Act 1986 is as follows: 
''A person is guilty of affray if they use or threaten unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.''
 It can be committed in private, as well as in public places. I accept that it is a violent offence, but is it the sort of dangerous offence that would justify triggering that definition for the purposes of this legislation? 
 I hope that those examples test whether the list is the right one. Rather than having a list of nearly 100 offences, it might be better to leave it to the court to apply the test on the basis of a general definition of a serious sexual or violent offence, rather than using a list that will, as the hon. Member for Woking said, be out of date within months, if not weeks, of becoming law.

Humfrey Malins: I would like to deal with amendments Nos. 741 to 744. They are probing amendments that would knock out paragraphs containing the well-known offence of assaulting an officer preserving a wreck, as well as the more popular offences of assault with intent to resist arrest, actual bodily harm and injuring persons by furious driving—another rarity. I should be interested if the Minister could tell us how many convictions there have been for assaulting an officer preserving a wreck in the past 20 or 30 years, or even—if he has such figures—40 years. There might be one or two more for furious driving.

Hilary Benn: I cannot help with preserving a wreck, but yesterday I asked the same question about furious driving, and I can give the hon. Gentleman the answer. In 2001, 83 persons were proceeded against for furious driving, of whom 38 were committed to the Crown court for trial. By the end of 2001 there were 16 proceedings for trial and eight people had been found guilty.

Humfrey Malins: That is most interesting. The Minister, for obvious reasons, did not dare ask how many offences had been recorded of assaulting an officer preserving a wreck. I shall take a wager: we can bet something substantial—or significant, depending on the next clause—on how many such offences there have been in the past 30 years.
 The purpose of my amendments is to ask the Minister three straightforward questions about the schedule. First, how were the 62 violent offences chosen? What methods were used? Was there wide consultation? Secondly, were any interesting offences omitted from the schedule? Was anything considered then rejected, and if so, for what reason? Thirdly, is there any prospect of making additions to the schedule? If so, does he have any offences in mind? 
 The importance of the nature of the schedule becomes apparent when one looks more carefully at clause 205. The Minister must correct me if I am wrong, but it seems that the trigger in clause 205 will work as follows. A defendant is in the dock and has been convicted of a serious offence—for example, grievous bodily harm with intent. The judge has to sentence. I read the clause several times before I was sure of the truth of this: the judge has then to address himself to the question of whether there is a significant—or substantial, but we shall talk about that later—risk of the defendant committing a specified offence in the future. A specified offence, as we have seen, can be a very downmarket offence. I think that we all agree that offences such as assault with intent to resist arrest—that is a section 38 assault—are at the bottom end of the market. 
 I hope that I am putting this adequately, but the scenario is that a conviction for a top offence will be coupled with consideration of the serious risk of a further specified offence, which could be very low level. Those who sentence someone who has been convicted of a serious offence may be assisted by the prosecution, which might not be a happy trend. We shall discuss later whether someone should be sentenced for what they have actually done rather than what they might do, and that is a bigger matter of principle. However, an unhappy scenario is developing in relation to the schedule. There is a prospect of further specified offences being considered, and specified simply means specified, rather than specified with a 10-year backup. 
 I simply do not see how the provisions will work in practice. If someone pleads guilty to a serious offence, such as a section 18 wounding offence, it is inevitable that someone who looks at his record will think that he will commit further offences. Furthermore, how does one sentence him? I may be wrong, but if one is satisfied that the thresholds have been crossed as regards the offender's probable future course of 
 action, one is stuck, even if this is his first offence, with a certain sentence—one may believe that one's sentencing power is not adequate, but there will be a 14-year or life sentence. I put those general points to the Minister because I am uneasy about the practical, day-to-day consequences of the schedule and the various classes of offence.

James Clappison: I apologise for my unavoidably late arrival. However, I have listened carefully to my hon. Friend, and his starting point was someone who appeared before the court charged with causing grievous bodily harm. Would not actual bodily harm also fit the bill as a specified offence, although there would also have to be a further offence and the risk of serious harm to the public for it to be dealt with as a dangerous offence?

Humfrey Malins: Yes, my hon. Friend gives another telling example, and the Minister is obliged to explain the selection of offences a little more. We look forward to hearing from him.

James Clappison: Will my hon. Friend confirm from his wide legal experience that when we refer to actual bodily we mean any physical harm of any description that can be detected?

Humfrey Malins: Yes, my hon. Friend is right. The definition of actual bodily harm is some bodily harm, which can be as little as a bruise, a graze or a black eye. It ranges from quite a serious offence to the very bottom end of the market, which could include any visible injury—even a bruise or a little scrape.
 On that note, I hope that the Minister will give us more of the background to the schedule. We look forward to hearing from him.

James Clappison: This subject interests me. I listened carefully to my hon. Friend's opening remarks, and I agree with him. The key aspect of clause 205 is that when someone who has been convicted of a specified offence is sentenced, there must be
''a significant risk to members of the public of serious harm''
 occasioned by the commission of further such specified offences. We would like from the Minister an exposition of the exercises that sentencers will have to perform when someone is before them. It would be easier to draw conclusions about such a risk if someone were before the court for a serious first offence such as grievous bodily harm. However, for less serious offences such as actual bodily harm, which although it may be serious can encompass offences less serious than violence, we need an exposition from the Minister of the sort of exercises that sentencers would have to perform. 
 Schedule 11 contains a long list of sexual offences. However, I draw a distinction between sexual offences that involve consenting adults and those that do not. The Sexual Offences Bill will create new offences for consenting adults such as outdoor sex, and we shall be studying that with great interest. As a member of the Select Committee on Home Affairs, I do understand why that should be considered an offence; but although I am besieged in my constituency surgeries by people complaining about a great many things, that has not been one of them. I look forward to hearing 
 the Minister's explanation. Neither have I heard any complaints about the offences commonly associated with public toilets. 
 Do the specified sexual offences in schedule 11 include acts committed by two consenting adults? There is a big distinction between such offences and serious offences in which there is a lack of consent of adults or minors.

Hilary Benn: How has schedule 11 been drawn up? It is intended to be a complete list of all sexual and violent offences carrying a maximum sentence of two years or more. The trigger for considering an extended sentence is one of the offences in the schedule that carries a maximum sentence of between 2 and 10 years; for public protection the trigger is an offence on the schedule that carries a maximum sentence of 10 years and above. That is how the two parts relate. Will the list be added to? Yes, indeed it will. The Sexual Offences Bill, which the hon. Member for Hertsmere (Mr. Clappison) mentioned and which will be given a Second Reading in the other place later this week, will change a great many offences in updating the law. It will also affect schedule 11.
 In answer to the hon. Gentleman's question about consent, the list of offences in part 2 of schedule 11 reflects offences as they are in statute at present. However, that will be subject to change if Parliament sees fit to pass the Sexual Offences Bill, which will amend the parts of the schedule. I wish to reflect on the point raised by the hon. Gentleman. If it is not solely a list of offences that do not involve consenting adults, I will write to him.

Lady Hermon: It is good to see you back this morning, Mr. Illsley.
 Will the Minister elaborate slightly? He has explained that the list in schedule 11 is intended to be ''a complete list.'' He will know that in Northern Ireland, specified violent offences include riot and affray. These are not included in schedule 11. We should bear it in mind that there have been serious race riots in England and that, curiously, in Northern Ireland sentencing for riot and affray is substantially lower than in England. Why have those two been left out of the list?

Hilary Benn: I trust that I have understood the hon. Lady's point; riot, violent disorder and affray are to be found in paragraphs 44, 45 and 46 of schedule 11.

Simon Hughes: I just want to comment following the intervention of the hon. Member for Hertsmere. It strikes me that the only offence that might come into the category that the hon. Gentleman mentioned is soliciting by men. I notice that soliciting by women is not included, but I am sure that there is such an offence, because every Monday the inner London magistrates courts have a large list relating to female soliciting.

Hilary Benn: That is a good point, and I shall reflect on it in trying to deal with the question.
 The main issue that was raised about the amendments was whether being found guilty of one of the offences would immediately put the person 
 concerned into the category of a dangerous offender. The answer is of course no. As the hon. Member for Woking pointed out, the court would then have to apply the test of significant risk of serious harm. I repeat that that is the really important safeguard. In the end, the courts must be trusted to operate the provision sensibly, and to have regard to that test. A test of serious harm is quite a high threshold. 
 As to the concern that has been raised about whether the court will give someone an indeterminate sentence because, on consulting the list of specified offences, it has decided that at some time in the future he might assault a police officer preserving a wreck, I do not see how that could possibly fall within the definition of a significant risk of serious harm. It would be left to the court to weigh up the matter. The intention is clear and the circumstances to which the chapter of the Bill relates are clear. It is intended to deal with the current gap in the system. I expect that the hon. Member for Hertsmere recognises—I do not know whether I said this before while he was in his place—that a risk of serious harm to the public remains from some people at the end of their determined sentences. That is the test that the court would be asked to apply within the framework of the clause.

James Clappison: I am grateful to the Minister for that response. I accept what he says, and that the purpose is to protect the public from serious harm. I think that he would agree that an appropriate line needs to be drawn somewhere to enable a decision to be made about who should be affected by the provision and what offences qualify. That was the point of my question. I shall be grateful for the Minister's comments in a letter.
 One point that worried me, however, was whether in future consenting adults might be affected by provisions intended to deal with dangerous offenders. I am quite liberal in such matters and I draw a strong distinction between what consenting adults get up to and the law that is intended to protect minors and adults who have not consented to the relevant actions.
 I am concerned about the idea of bringing people within the compass of such provisions, and especially the newly created offences such as outdoor sex and garden sex. My constituents will be relieved to know that it is still permissible to have sex in their homes. As we are creating new offences, it is important to mention the point.

Simon Hughes: So garden sex in the suburbs is adding a bit of excitement to a morning of considered and careful debate.
 I think that there is broad consensus on the Opposition Benches for the general proposition of the hon. Member for Hertsmere that consensual activities should not be placed in the same category as things that are clearly a danger to other adults or children. I shall not prolong the debate by asking the Minister to answer my points about people who commit offences that they see as culturally acceptable, but I should be grateful if he could reflect on the questions that I asked and perhaps give 
 me a reply in writing. I hope that this debate has raised a set of questions about the appropriateness of a list and this list. We shall have to reflect on those matters. The sets of trigger mechanisms are quite complicated. There are some concerns about the list. I can see where it is derived from and, although it appears to have gaps, I shall reflect on what the Minister said. I am sure that we shall return to the issue, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Hilary Benn: I beg to move amendment No. 756, in
schedule 11, page 214, line 7, after 'racially' insert 'or religiously'.

Eric Illsley: With this it will be convenient to discuss Government amendment No. 757.

Hilary Benn: These are two drafting amendments that cover paragraphs 57 and 58, which as currently drafted do not take account of the changes that were made by the Anti-terrorism, Crime and Security Act 2001, which extended such provisions to cover religiously, as well as racially, aggravated offences. The amendments make a small change to reflect the law as it currently stands and to deal with a drafting error.
 Amendment agreed to. 
 Amendment made: No. 757, in 
schedule 11, page 214, line 8, after 'racially' insert 'or religiously'.—[Hilary Benn.]
 Question proposed, That this schedule, as amended, be the Eleventh schedule to the Bill.

Simon Hughes: I again ask the Minister to reflect on whether it is better to have the schedule in the Bill or to issue the list by way of guidance. Another way would be to have the norm as a list, which would be in sentencing guidelines. I ask Ministers to reflect on that.
 Question put and agreed to. 
 Schedule 11, as amended, agreed to.

Clause 205 - Life sentence or imprisonment for public protection for serious offences

Humfrey Malins: I beg to move amendment No. 684, in
clause 205, page 114, line 25, leave out from 'a' to end of line 27 and insert 
 'substantial risk of his committing further specified offences involving a significant risk of serious harm to members of the public.'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 712, in 
clause 205, page 114, line 25, leave out 'significant' and insert 'substantial'.
 No. 713, in 
clause 205, page 114, line 27, leave out 'specified' and insert 'serious'.
 No. 714, in 
clause 206, page 115, line 8, leave out 'significant' and insert 'substantial'.
 No. 715, in 
clause 206, page 115, line 10, leave out 'specified' and insert 'serious'.
 No. 716, in 
clause 207, page 115, line 36, leave out 'significant' and insert 'substantial'.
 No. 717, in 
clause 207, page 115, line 38, leave out 'specified' and insert 'serious'.
 No. 718, in 
clause 208, page 116, line 25, leave out 'significant' and insert 'substantial'.
 No. 719, in 
clause 208, page 116, line 27, leave out 'specified' and insert 'serious'.
 No. 720, in 
clause 209, page 117, line 10, leave out 'significant' and insert 'substantial'.

Humfrey Malins: We have moved to an important clause. We have dealt with the definitions clause and the schedule, and we now see how those provisions bite in practice. I express a distinct unease at the prospect of sentences being issued perhaps more than hitherto for both the offence before the court and what might happen in future. The significant risk of a future offence is a subjective judgment, and there might be some variety in the way in which such matters are assessed.
 It is as well to focus on the current wording of subsection (1)(b), which says that the provisions apply if 
''the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''
 It is vital that we understand what that means in plain English, because there is an ambiguity. Does that passage mean, on one hand, that there would be a serious risk of harm if the offender committed the specified offences again? The answer to that would almost certainly be yes. Or, on the other hand, do those words mean that there would be a significant risk of the offender committing further offences? Furthermore, would those offences pose a significant risk of harm to members of the public? There is a difference. If it means the latter—I think it should, hence my amendment—rather than the former, it is the risk of further offending that triggers the concern rather than the risk of harm if further offences are committed. 
 It is worth focusing for a moment longer on that point. If the court puts subsection (1)(b) into different language it means the same thing. Subsection (1)(b) says that the clause will apply if the court thinks that 
''there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''
 Would there be a significant risk of serious harm if the defendant, by chance, commits any further specified offences? Of course there would be. However, that should not be the question. The question should be whether there is a serious risk that he will commit further specified offences. However, the actual wording more or less implies, and this is the plain English of it, that if, by chance, the defendant commits any further offences there will be a risk of serious harm. I urge hon. Members to read the subsection, because the more I read it, the more I read into it my interpretation. 
 Paragraph (b) does not say whether there is a significant risk of the defendant committing the offences; it just asks what the chance of significant damage is if he commits them. What is a judge to answer? As night follows day, if a judge is asked whether there will be serious harm to the public if a defendant commits further specified offences, the answer will almost certainly be yes. However, the judge is asking himself the wrong question. The judge does not have to ask himself whether the risk of damage to the public is pretty nasty if the offender commits further offences, because anyone in the courtroom can say, ''Of course it is.'' The judge should be asking himself a different question.

James Clappison: My hon. Friend is making some excellent points. We all want to protect the public from serious harm, but at the same time we want provisions that are workable for the courts. Will my hon. Friend, using his experience, reflect on the question of how judges will arrive at that opinion for someone who is appearing before the court for a minor offence? How will the court come to such opinions? How will that work in practice?

Humfrey Malins: My hon. Friend raises a very interesting question on just what procedure a judge will go through. There was an indication earlier in the Bill of the prosecution becoming slightly more involved in the process in terms of their looking at pre-sentence reports. I shall pose some rhetorical questions to my hon. Friend and to the Committee. Will the prosecution make representations about sentences from now on? Will the pre-sentence report contain a specific measure to deal with that? Will the defence be entitled to make representations?
 My hon. Friend rightly draws attention to the process that must be followed. However, that must not take our eyes away from the central issue of what clause 205 says, as opposed to what the Government want it to say. We know that they want subsection (2)(b) to ask, ''Is there is a significant risk that he will commit further offences, and will they pose a problem?'' The Government want to know what is the risk of someone committing further specified offences. That is the critical point, but I really do not think that it says that. I think that it asks quite plainly, ''Does the court think that there is a significant risk of serious harm to members of the public occasioned by the commission of any further offences?'' The answer to that would be yes, but it should not be the question. 
 I hope that I have not laboured the point too much, and I hope that the Minister will take it on board. It is a matter of plain English, which is why I think that amendment No. 684 is vital. I see several foreheads that are slightly furrowed by my point. I think that I am right to say that subsection (2)(b) says what the Government want it to say. My amendment, which, in effect, sets out the proposition that the court has to believe that there is a significant risk that he will commit the further offences and that further serious damage will follow. That is the point. At the risk of labouring the point, the answer to the question, ''Will some jolly rotten things happen if he commits a further offence?'' is yes. However, the important question, 
 ''Do I have to consider what the odds are of his committing further offences?'' is not spelled out. 
 The rest of my amendments concern omitting the word ''significant'' in several parts of this and subsequent clauses, and substituting the word ''substantial'', and, ditto, leaving out on a number of occasions in clauses 205, 206, 207 and 208 the word ''specified'' and inserting ''serious''. The object is to bring clarity to the language and to up the threshold—if I may put it in that neutral way. 
 Under clauses 205 onwards, if the offender has committed a serious offence or the court considers that there is a significant risk, the court must impose a life sentence or an extra period of imprisonment. The consequence is that a life sentence will be imposed on the basis that the offender may commit offences in future. That is a very serious sanction. The court should therefore have a substantial belief that a danger to the public exists. Despite my earlier point, which this one complements, the word should be ''substantial''. The requirement that the risk should be ''significant'' is difficult to quantify. What is significant risk? The fact that the defendant has already committed one of the offences in the schedule could, on its own, give rise to a belief that there is a significant risk that he will commit another. However, I am trying to increase the requirement to a substantial risk. That would ensure that the court had to have some sort of substantive belief in the existence of such a risk before it could apply the enhanced sentencing provisions. 
 Substantial or significant? Is there a difference and does it matter? When in doubt, go to a dictionary. We are dealing with important words. The best distinction that I can find is in the Collins dictionary—the word significant means meaningful or indicative and the word substantial means great, weighty or full of substance. I sense, therefore, that substantial is a stronger word than significant. 
 Mr. Illsley, you were not with the Home Affairs Committee two years ago, when it toured Europe to consider asylum issues. The hon. Member for Wellingborough (Mr. Stinchcombe) was there when, one day in Hungary, we were talking about the choice of words. We were told that the Hungarian language has four times as many words as ours, including more than 150 words meaning house and more than 50 words meaning laughter. We had a competition—how many words could we think of in English to mean laughter or laugh? It was serious, and the hon. Gentleman did very well. However, I challenge the Committee to think of 10 such words—there are 10. I offer merely guffaw, chuckle and chortle; there are more. Let the Minister think about it. 
 Meanwhile, I draw the Committee back to the difference, if there is one, between ''significant'' and ''substantial''. It is not an unimportant distinction; it might matter. The word significant, as used in clause 205 and subsequently, is not precise enough in view of the grave consequences of the findings that could be 
 made as a result of it. What is the approximate level of probability, on a scale of one to 100, of ''significant''? Would not it be preferable and more clearly in tune with human rights legislation if we used ''substantial''? As well as checking in the dictionary, I spent half an hour looking at the thesaurus, that magnificent tome on words and the English language, and concluded that substantial is a stronger word than significant. There is some merit in it. 
 The Prison Reform Trust is another group that does not like ''significant''. It said that it was not sufficiently precise, in view of the grave consequences of the courts making such a finding. I ask the Minister to ponder on that point, not least because there is a good precedent for ''substantial''. The trust points out that that word would be consistent with the text of clause 6(4)(a) of the draft Mental Health Bill, which refers to the 
''substantial risk of causing serious harm to other persons''
 being a condition of detention. The word ''substantial'' is used a lot in the criminal law, and it would be preferable to use it in the Bill. 
 My other amendments would remove the word ''specified'' and insert the word ''serious''. Doing so would be upping the standard, which we need to do. 
 I hope that my colleagues will contribute to the debate. I have cut short what I might have said, because we have other important business this morning. There are good reasons for using the word ''substantial'' rather than ''significant''. There is an even more telling reason for amendment No. 684. There can be no doubt about the literal interpretation of the clause; it is that the court has only to ask—on the off-chance that further offences will be committed—whether the damage that we are concerned about will result. That is not the question that the Government should want the court to ask; the court should be asking the question posed in the amendment, which I hope carries some support. 
 By the way, hon. Members may not have been listening to me on the question of ''substantial'' versus ''significant'', but will have discovered instead that there are at least a dozen effective words meaning ''to laugh''. I illustrate the argument by saying that words are important, and that the word in my amendment is better than that in the Bill.

Simon Hughes: These are important matters, and I hope that we can persuade the Minister to accept the burden of the argument. That is why I and my hon. Friend the Member for Somerton and Frome (Mr. Heath) put our names to the amendments.
 I share the views of the hon. Member for Woking on the interpretation of the clause as drafted. All that the court has to do to trigger what could be a life sentence is to be of the opinion that there is a risk that the defendant might commit any of the specified offences. The answer will inevitably be yes if the person before the court is aged 18 or over and is convicted in that court of a serious offence. The second trigger means nothing. One is home with a life sentence after the first. That seems to me the inevitable implication. 
 We are talking about triggering the most serious action that a court can take—giving a life sentence. We should allow that sentence to be triggered extremely rarely, and only if it is entirely justified against the sweep of criminal justice legislation. We need to reflect on the need to avoid far-reaching and unexpected effects on future sentencing policy. 
 There is obviously a difference between the terms ''significant'' and ''substantial''. Anything that is recognisable or identifiable can become significant. In the words of Professor Ashworth, who has been referred to before, 
''the term 'significant' used in clauses 205–209 is not sufficiently precise in view of the grave consequences of a finding. What approximate level of probability, on a scale from 1 to 100, is 'significant'?''
 That strikes me as a good question. It would be helpful to know the Government's thinking. I consider that the word is entirely the wrong one. It suggests a lesser threshold, a smaller qualification and a less serious matter. We should be considering probability—the more likely outcome. 
 Lastly, we need the amendments because otherwise the court could give an extended or life sentence even if the offence that the person might commit later would not itself even attract a custodial sentence. For example, assault occasioning actual bodily harm, a section 20 offence, would not normally bring a custodial sentence, but in the context of the clause it would trigger stage 2 and put the defendant into a life sentence category. I stand to be corrected but I believe that putting people in fear of violence does not, again, normally bring a custodial sentence. However, in the context that we are discussing it would trigger the most severe consequences. As to the example that we mentioned before—soliciting by men—I am not aware of its ever bringing a custodial sentence. It may happen occasionally. That would automatically, if it was thought to be a possibility, trigger the most severe sentences. 
 The consequence of the wording is that if the court believed that there was a risk of any offence defined in the list as sexual or violent—and being on the list would be sufficient—the enhanced sentence would have to be imposed. We shall come to the question of the must/may option. However, at present the word is ''must''. There is no choice. Therefore either the clause will have unintended consequences or, if those consequences are meant, they are entirely the wrong ones.

Humfrey Malins: Does the hon. Gentleman agree that under clause 205(1)(b) the court does not have to believe that there will be any further offences—merely that if there were, by chance, the consequences would be nasty?

Simon Hughes: That is certainly my reading. All that the court must assess is what the consequence of a particular offence would be.

Paul Stinchcombe: I appreciate the argument, but how can it be right? There would be no risk of harm if there were no risk of a further offence.

Simon Hughes: Because of the drafting of subsection (1)(b). The drafting presupposes that an offence would be committed and that it would entail a significant risk to members of the public. However, it is not phrased in that way. It does not state: ''A person aged 18 or over, if convicted of a serious offence, will trigger a further serious extended penalty if the court is of the opinion that there is a significant risk that he or she will commit one of the further offences which would be a significant risk to members of the public.'' Whether the public will be at risk is a perfectly proper consideration. The court should have to take a view about whether there is a risk of an offence being committed and the public put at risk. That is not what the clause states.

Hilary Benn: The furrowing of the brows referred to by the hon. Member for Woking resulted from the fact that I was having difficulty applying the hon. Gentleman's construction to clause 205(1)(b). Not for the first time in our proceedings, I entirely agree with the helpful intervention by my hon. Friend the Member for Wellingborough because I do not see how the possibility of significant risk to the public can arise if there is no risk of a further specified offence being committed. I cannot read the clause in the way that the hon. Member for Southwark, North and Bermondsey does. The key question is whether further offending will cause serious harm, but as my hon. Friend rightly says, there must be a risk of further offending before one can consider whether it would cause harm. One cannot divide the two, which is why I do not follow the hon. Gentleman's argument. For the avoidance of doubt, there must be a risk of further offending for clause 205(1)(b) to apply.
 The second point that I want to make about the amendments is that we must remember that we are talking about significant risk. On the issue of ''significant'' versus ''substantial'', when I first read the amendments tabled by the hon. Member for Woking, I asked myself what the difference was. Although I can understand the argument that ''substantial'' might be slightly stronger than ''significant'', there is not a big difference for the purposes of interpretation. 
 To put that aspect aside for a moment, the key is to reduce the risk of serious harm to members of the public. What does serious harm mean? It means significant risk to members of the public of death or serious personal injury, whether physical or psychological. Therefore, many of the arguments that we have heard fall by the wayside because the court must apply that test, which is, rightly, a very high test. It deals with the fears that have been expressed by Opposition Members that this part of the Bill ranges so widely that the courts will say to offenders, ''We think that you might commit one of the offences listed in the schedule, so we will lock you away for a very long time and not let you out.'' That is not the case because the provision is tightly worded. If the court were to decide that there was a significant risk that a member or members of the public would suffer death or serious personal injury, whether physical or psychological, the public would say, 
 ''Hang on; if that is the court's judgment, working on the basis of risk assessment, surely it is right in those circumstances for the court to hand out a sentence that protects me or some other member of the public from death or serious injury.''

Humfrey Malins: But can the Minister tell us why the word ''significant'' is thought to be more appropriate today for this Bill, but the word ''substantial'' was thought to be more appropriate in the case of the draft Mental Health Bill, which deals with exactly the same issue?

Hilary Benn: I cannot answer the question in relation to the draft Mental Health Bill. All that I can say is that, having considered the argument in the round, significant risk is the right test, in so far as ''substantial'' would apply a higher test. However, I do not share hon. Members' perception of the difference.

Humfrey Malins: It was the dictionary.

Hilary Benn: Well, my view is that ''significant risk'' is a perfectly reasonable test to ask the court to apply in deciding whether serious consequences are likely. It is reasonable to require the court to weigh the issue and to decide whether, in lay person's terms, there is a significant risk.

Simon Hughes: I am sure that the Minister accepts that there is no argument about the dangerous offenders provisions being triggered where the court decides that the defendant is likely or highly likely—I am avoiding the two adjectives for the moment—to commit an offence that would result in serious harm, which is defined as
''death or serious personal injury, whether physical or psychological''.
 There is no difficulty about that. The question is whether that is what the syntax of subsection (1)(b) means, so there is an argument about the drafting. 
 On the substantive point, however, the Minister surely accepts that ''significant'' is not as high a threshold as ''substantial''. Will he answer my Professor Ashworth question? How high, on a scale from one to 100, must the probability be for the risk to be significant? It could be one out of 100.

Hilary Benn: The honest answer is that there is no answer on a scale from one to 100. As is the case with many provisions in the Bill, and in the criminal justice system generally, one trusts the court to use its judgment in making an assessment. It would not be helpful to determine where ''significant'' fell on a scale from one to 100, any more than it would be to determine where ''substantial'' fell. That would not greatly assist the court in carrying out its responsibilities under the Bill. However, the phrase ''substantial risk'' is sufficiently clear when allied with the phrase ''serious harm''—that is defined in clause 204, which we have agreed—to give the court the guidance that it needs to operate the provisions. For reasons that the Committee understands, there is a weakness in the current system as regards dealing with those who remain very dangerous even though they have come to the end of a determinate sentence.

James Clappison: I am sure that the intentions are good, and we all want to protect the public. However, we also want to ensure that the provisions work, and I want to put two substantial points to the Minister as briefly as I can. First, the evidence before the court will, as the Minister knows, relate to the current offence, which could be any of the offences in the schedules, so how will the court reach an opinion about risk? Secondly, what opportunities will the defendant have to make representations when the court does reach an opinion? Will he be given any warning of the court's deliberations? Will there be a further hearing?

Hilary Benn: The answer is in clause 209, which deals with the assessment of dangerousness. As the hon. Gentleman will see, the court will need to take account of
''all such information as is available to it about the nature and circumstances of each of the offences . . . any information which is before it about any pattern of behaviour of which any of the offences forms part, and . . . any information about the offender which is before it''.
 The court must therefore have regard to a very wide range of considerations in assessing dangerousness, and that is sensible.

James Clappison: I am grateful to the Minister, but the evidence before the court will relate to the present offence. Where will this other information come from? Will the offender be warned that the court is thinking of passing a particular sentence and be given the opportunity to make representations and to test the evidence?

Hilary Benn: Well, an obvious answer to the first question is that information will be contained in pre-sentence reports, which we touched on earlier. That information may range very widely over the circumstances of the defendant's previous offending behaviour, and all the other information referred to in subsections (2) or (3). Elsewhere in the Bill we agreed on arrangements for ensuring that such matters are disclosed. In such circumstances, if there are representations before sentence is passed, as is normal, the court will take them into account in deciding how it will exercise the powers that we are debating in relation to the clause.

James Clappison: I have listened carefully to the Minister and would ask him to think carefully about the mechanics. We should remember that the defendant is before the court for one of the offences from the wide range of those contained in schedule 11, such as actual bodily harm or grievous bodily harm. The court might come to the opinion that a much longer sentence can be passed on the basis of the
''significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences'',
 which is a quantum leap from some of the offences that appear on that schedule, and for which the offender has been convicted. The Minister should think carefully about the basis on which that quantum leap will be made, as regards evidence. 
 The Minister referred to the social inquiry report, which courts often have in addition to the evidence relating to the offence. However, the probation officer 
 prepares the social inquiry report and examines the background and history of the person concerned that relate to the offence in question. Courts sometimes take such reports into account in order to mitigate offences. The Minister is saying that information contained in the social inquiry report can seriously aggravate the position of the offender and take him from within the bounds of the offence in question into a much more serious category. He is turning the social inquiry report into evidence on the basis of which the offender might receive a much more serious sentence. Has the Minister discussed the matter with representatives of the probation service? I seek further information on that, because my intentions are the same as those of the Minister: I want to protect the public. If there is a risk of people causing serious harm to the public, let us protect the public. However, we should ensure that the mechanics are right and that they are workable.

Hilary Benn: On the information that would be available, under clause 209 the court will take into account all the information that is to hand about the nature and the circumstances of the offence, and other information about the pattern of behaviour, of which the offence forms part. That would include relevant previous convictions and any information about the offender. Pre-sentence reports would be the main source of information available to the courts. We have discussed the matter with the probation service.
 The court might also refer to specialist assessment tools, such as risk matrix 2000 for sex offenders and the violence risk assessment guide for violent offenders. The probation service is developing the new offender assessment system, OASys—

Humfrey Malins: It is a pop group.

Hilary Benn: —which is widely regarded as a leading development in trying to assess the basis of the risk. It is not the Oasis to which the hon. Gentleman referred from a sedentary position, and to which many of us are very partial. OASys is currently being rolled out across the probation service and assists in the process. We should be honest about the matter: the task is difficult, and I do not underestimate the argument that the hon. Member for Hertsmere makes about trying to make an assessment about the degree of risk that an individual poses.
 The court will have to have regard to all those circumstances in deciding whether it is appropriate to apply the sentence for public protection, bearing in mind that the offender must have been convicted of a serious offence and that the court is of the opinion that there is a significant risk to members of the public of death or serious personal injury—[Interruption.] I am just taking us through this because I think that it is helpful. I do not want any hon. Member to leave the Committee with the impression that a court can decide to give somebody a sentence for public protection for a relatively insubstantial offence because it decides that that person may at some time in future commit one of the offences in the schedule. That is not the case. That is why we were careful to build into the process the trigger, the assessment of significant risk, and the safeguards in clause 205(1)(b). There are also the other circumstances that I have just described and the 
 sources of information that the hon. Gentleman has helpfully given me.

James Clappison: I understand the mechanics, but the evidence before the court will relate to the specified offence, and that could be any one of the specified offences in the schedule, including assault occasioning actual bodily harm. That is why we must look carefully at the evidence on which somebody will receive a much more serious sentence because it is felt that there is a need to protect the public. Will an offender in such a position be given a warning that a court is considering passing such a sentence, so that he can test the evidence and make representations?

Hilary Benn: I am sure that that would have to happen, although if I am wrong I will write to the hon. Gentleman. The court will have to make an assessment, and I am sure that the offender will have an opportunity to make representations. The court will have to go through quite a process. It includes the information that will be disclosed to the offender in the pre-sentence report, which under the provisions of the Bill will be sent to the offender and to his or her legal representative. If there are representations to be made, there is an opportunity in the courts to do that.

James Clappison: Nevertheless, there appears to be no warning to an offender before he appears in court for the specified offence that the court is thinking of passing a much more serious sentence on him. There is nothing in the clause to tell the offender that that could happen.

Hilary Benn: May I reflect on the point that the hon. Gentleman has raised? It is important that offenders are aware of the possible consequences of the sentence that a court is considering. I will reflect on that point and respond to him.

Humfrey Malins: This has been a worthwhile debate. The hon. Member for Southwark, North and Bermondsey was very supportive of my amendments, and I am grateful to him for that. I am particularly grateful to my hon. Friend the Member for Hertsmere, who has argued clearly and cogently with the Minister for the past few minutes. It is clear that the Minister has a great deal to consider in these amendments. I hope that he will consider them, for there can be no doubt that Opposition Members raised a great many points that should make him reflect very carefully on clause 205. None of us has been convinced by his response to amendment No. 684. It has been pointed out that clause 205(1)(b) is very ambiguous, and that has been reinforced by no less a body than the Bar Council.
 Are we to interpret the clause as saying that there would be a serious risk of harm if the offender committed the specified offence again? If the answer is yes, the question of odds or of ''significant'' or ''substantial'' is immaterial. If that is the case, the clause is very badly drafted and should be amended. What about our amendment? Would there be a substantial risk that he would commit further offences, and would they pose a significant risk of harm? That approach is much to be preferred. I hope that the Minister will take it on board. I hope, also, that he will accept that it is not sufficient to say that 
 the word ''significant'' is as good as the word ''substantial''. A look at the dictionary—to which we should always turn for a definition in times of stress—will tell him that there is a different flavour to the word ''substantial''. It represents a higher threshold and a much better approach. 
 We are unhappy. I do not think that my hon. Friend the Member for Hertsmere will be entirely satisfied with what he has heard from the Minister, although the Minister has promised to think carefully about the matters.

James Clappison: I should like to put it on the record that I am grateful to the Minister for offering to write to me. I agree that there is a need to protect the public, but we must get the mechanics right.

Humfrey Malins: I echo my hon. Friend's remarks. The Minister's points were valid, he approached them in a fair way and he has undertaken to consider the matter. There is no doubt that the Committee is determined to proceed on the basis of protecting the public. Let it not be thought—I am sure that it is not—that anything said on these Benches is anything other than supportive of that view. The purpose of a Committee is to consider matters carefully and occasionally to tease from the Government a slightly different approach. That can be important and could improve the Bill.
 Undoubtedly, we shall return to these matters on Report—they are important. Given that, for today, I beg leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Hilary Benn: I beg to move amendment No. 628, in
clause 205, page 114, line 35, leave out from beginning to 'the' in line 39 and insert 
 'In a case not falling within subsection (2),'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 896, in 
clause 205, page 114, line 39, leave out 'must' and insert 'may'.
 Government amendments Nos. 629 and 630. 
 Amendment No. 897, in 
clause 207, page 115, line 44, leave out 'must' and insert 'may'.
 Government amendments Nos. 632 to 634, 636 and 637.

Hilary Benn: May I refer the Committee to the point that I made in response to an intervention from the hon. Member for Woking? On reflection, we did not think that the wording was sufficiently tight to achieve our objective. That is why we propose to amend clause 205. If the tests that we have debated at length are met, and there is an assessment of significant risk of serious harm and therefore serious personal injury, the court must impose a sentence of imprisonment for public protection. The purpose of amendments Nos. 628 to 630, 632 to 634, 636 and 637 is to ensure that where offenders have committed specified sexual or violent offences and have been
 assessed as dangerous, they must be sentenced under the new provisions for dangerous offenders.
 As the clause is currently drafted, if an offender is assessed as dangerous and has committed a specified offence, the court must impose one of the new sentences if it considers that no other sentence available would be satisfactory for the purposes of public protection. That still leaves the court with the option to pass a normal sentence. On reflection, that could undermine the purpose of the new provisions, which is to ensure that the public are properly protected against offenders who present a serious risk. In order to ensure that dangerous offenders who are convicted of a specified sexual or violent offence can be sentenced only under the new dangerousness provisions, amendments Nos. 628 to 630, 632 and 633 remove the court's discretion to impose alternative sentences. 
 Amendment No. 628 requires the court to impose a sentence of imprisonment for public protection on an offender who has been assessed as dangerous, and has committed a serious specified offence that is not considered so serious as to justify a discretionary life sentence. Amendment No. 630 requires the court to pass an extended sentence for certain violent and sexual offences for which the offender has been assessed as dangerous and has committed a specified non-serious offence. The essential point is that those amendments ensure that no offenders who are assessed as being dangerous at the point of the sentence, and who have committed a specified offence, may be released before the end of their sentence unless they have had their risk assessed. We are trying to achieve the assessment of risk in the interests of public protection before offenders are released. 
 Amendment No. 629 prevents the court from imposing a standard sentence on a juvenile who has been convicted of a serious specified offence. Together with amendments Nos. 632 and 633, the amendment provides instead that, in a case in which the offender is not liable under clause 206(2) to a sentence of detention for life under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the court must choose between a sentence of detention for public protection or an extended sentence. A sentence of detention for life will be imposed only if the court thinks that the latter is not adequate to protect the public. 
 As the extended sentence will now be available for serious specified offences, amendment No. 634 removes the restriction on the length of extended sentence that may be imposed up to the adult maximum for the offence. Amendments Nos. 636 and 637 make the necessary changes to the interpretation provisions so as to set out that where a sentence of imprisonment or detention for public protection, or an extended sentence, fails to be imposed under the relevant clauses, the court is obliged to pass the relevant sentence.

Simon Hughes: The Minister spoke to the amendments very professionally. I am not sure whether I grasped all their implications. That may be my weakness. I wonder whether he would be kind
 enough to let us have a substitute note on the clause to explain it as it will be if the amendments are made.

Hilary Benn: Gladly.

Simon Hughes: We can look at the amended clause and reflect on it.
 May I speak to amendments Nos. 896 and 897? They would have a similar effect. The purpose of the amendments is to change the obligatory ''must'' for the discretionary ''may''. They would allow the court to impose a sentence of life imprisonment for public protection rather than make such a sentence obligatory. 
 I need not expand the argument at any length, but those matters are best assessed by the courts. The Minister will know that our view is that mandatory sentences are not a good thing. The court should have discretion. If we take the view that the court should have discretion in all cases, it would be illogical not to have a view that the court should exercise its discretion in this instance. The deterrent effect, if that is regarded as a consideration, would not be reduced, because both the defendant and the public would know that there was a possibility that a life sentence could be triggered. It would equally protect the public. The amendments would avoid life sentences being passed if the court, on the balance of judgment and having weighed up all the options, decided that there was a better and safer disposal. That is a decision that is reasonably left to the courts rather than having to be anticipated by Parliament. I hope that the Minister will at least be sympathetic to the idea. I appreciate that this debate will not conclude here today, but will go on as the Bill proceeds through Parliament.

Humfrey Malins: I was simply going to ask, further to the hon. Gentleman's point, whether the Minister feels that it would be appropriate to let us have full explanatory notes on all Government amendments on the day on which they are tabled, so that the Committee might be fully informed.

David Heath: A precedent.

Hilary Benn: I heard the word ''precedent'' muttered. My explanation of the amendments was clearly not sufficiently accessible. I freely confess that. If I may recapitulate, to enable hon. Members to take on board immediately the importance of the amendments, if the tests that we were discussing at great length this morning are met, and in particular if the assessment is that a significant risk of death or serious personal injury is posed to members of the public, the sentence for public protection must be imposed. That is the purpose of chapter 5. On reflection, we do not think that it is sensible to open up the possibility that another sentence might be made available, which subsection (3) currently does. For the same reason, we do not agree with amendments Nos. 896 and 897. They would weaken the fundamental principle behind the clause, which is that if an assessment of dangerousness is made, release should be based on the assessment of the risk, not when somebody happens to come to the end of a determinate sentence.

Paul Stinchcombe: Does my hon. Friend agree that amendments Nos. 896 and 897 would give a court that had determined that a sentence would be inadequate to protect the safety of the public discretion to impose it none the less?

Hilary Benn: My hon. Friend is, as ever, absolutely right. The proposal is illogical, which is why I resist it. It also undermines the central purpose of the clauses, on which the Committee is agreed, namely that if an offender is that dangerous, release should be based on assessment of risk and not on the expiry of a determinate sentence. That is what it is all about, and I think that the hon. Member for Southwark, North and Bermondsey will, on reflection, accept that argument; the public would expect nothing less.
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: This is a very important clause. Obviously, it has to be read with clause 209. It is proper that all those both inside and outside the House with an interest should reflect on all the interlinked sets of debates. There is no difference of objective. We need to provide a mechanism for fair justice and the protection of the public against serious offences. It is a question of how to do it in the most transparent way. No doubt, we shall return to the matter later.

Mark Francois: Very briefly, may I ask the Minister to allow us to drop him a very big hint? There is a strong rumour that, next week, we shall find a number of new clauses, particularly relating to gun crime. Can he ensure that the explanatory notes relating to those new clauses are available in good time for members of the Committee to examine, as that would assist our proceedings?

Hilary Benn: Yes, that is a fair point.

Eric Illsley: Fair, but out of order.
 Question put and agreed to. 
 Clause 205, as amended, ordered to stand part of the Bill.

Clause 206 - Detention for life or detention for public protection for serious offences committed by those under 18

Amendment made: No. 629, in 
clause 206, page 115, line 19, leave out from 'that' to 'be' in line 20 and insert 
 'an extended sentence under section 208 would not'.—[Hilary Benn.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: This might be the only opportunity to discuss the detention of young people in the context of serious offences. What is the current and intended policy about where people aged under 18 in this category should be detained? The Solicitor-General will know that, for a long time, Southwark has managed a place called Orchard lodge, which is on the edge of the borough and has dealt with some
 disordered youngsters in a secure way. So far as I know, it has an extremely good reputation. I hope that the Minister will confirm that similar facilities are intended in this case, namely that they should be small, local authority-run secure units, and not adult prisons. I am conscious that we still have young people under 17 in adult prisons. Do the Government intend that that should end, and if so, when? Are other sorts of provision intended? At present, young people can be detained in any place determined by the Secretary of State.
 Do the Government take the view that all young persons convicted of serious offences should have their cases reviewed when they come of age, with no automatic presumption that they should continue in custody indefinitely? The most famous case—or the most notorious—was the James Bulger case. Rightly, in my view, the authorities considered that the offenders' sentences should be reviewed when they reached 18. The way in which child offenders are treated in adult life should depend on how they respond to their treatment and punishment when in custody. 
 We should not wreak vengeance on adults for sins that they committed as children. We should take a rehabilitative and forgiving view, however difficult it may be, if children who committed offences do not pose a risk to the public once they reach the age of majority. Their cases should be reviewed, and if it is considered safe to release them, they should be able to make a fresh start in adult life. We should start with the presumption that they should be treated differently from those who commit such crimes as adults, who must clearly take full responsibility for their actions. What is the Government's policy on those issues?

Joan Humble: I shall pick up on some of the points made by the hon. Gentleman. In my previous incarnation, as chair of Lancashire social services, I was responsible for interviewing and reviewing the cases of young people in secure accommodation. I visited many local authority secure accommodation centres throughout the country. Most of them were operated in the best interests of the young people and undertook the sort of rehabilitative work that has been mentioned this morning.
 I specifically want to pick up on the point that the hon. Gentleman made about young people reaching the age of majority. I recall the case of one young man who had committed a serious offence and was in secure accommodation as a result. If he had been an adult, he would have been in an adult prison, his sentence would have been coming up for review and he would probably have been allowed parole or his case would have been otherwise reconsidered. However, because he was in secure accommodation and had reached the age of 18, he was automatically transferred to an adult prison. 
 I made representations on behalf of that young man, because he had responded very positively during the years that he spent in secure accommodation. I had regular meetings with him, and the staff wrote reports 
 on him, but the system did not seem to see him as a young man or consider his needs. He was automatically transferred to an adult prison, where he was unlikely to have continued to receive the same support. 
 We should look at the continuum of care offered in secure accommodation. We should consider the circumstances in which young people are put in prison at the age of 16 or 17—but, just as important, we should consider what happens when they are transferred once they reach 18.

Humfrey Malins: I shall make two brief points. First, subsection (3) is badly drafted. It would be much better if it said, in cases not falling within subsection (2), that the court must impose a sentence of detention for public protection ''if satisfied that no other disposal is appropriate.'' At present, it is terribly long-winded. Secondly, what is the word ''legally'' doing in the second line of subsection (3)? It seems to envisage not only that the court can deal with the defendant legally, but that it can do so illegally.

Hilary Benn: I shall deal first—

Mark Francois: Alpha and omega.

Hilary Benn: The last shall be first. Good questions have been asked. I shall try to answer the problem that was spotted, with his usual eagle eye, by the hon. Member for Woking. I am sure that it is of considerable import—
 It being twenty-five minutes past Eleven o'clock, The Chairman put forthwith the Question already proposed from the Chair. 
 Question agreed to. 
 Clause 206, as amended, ordered to stand part of the Bill. 
 The Chairman then proceeded to put forthwith the questions necessary to dispose of the business to be concluded at that time.

Clause 207 - Extended sentence for certain violent or sexual offences: persons 18 or over

Amendments made: No. 630, in 
clause 207, page 115, line 38, leave out from 'offences' to end of line 43.
 No. 631, in 
clause 207, page 116, line 16, leave out 'nine' and insert 'eight'.—[Hilary Benn.]
 Clause 207, as amended, ordered to stand part of the Bill.

Clause 208 - Extended sentence for certain violent or sexual offences: persons under 18

Amendments made: No. 632, in 
clause 208, page 116, line 22, leave out 
 'other than a serious offence'.
 No. 633, in 
clause 208, page 116, leave out lines 28 to 31 and insert— 
 '(ii) where the specified offence is a serious offence, that the case is not one in which the court is required by section 206(2) to impose a sentence of detention for life under section 91 of the Sentencing Act or by section 206(3) to impose a sentence of detention for public protection.'.
 No. 634, in 
clause 208, page 116, line 44, leave out 
 '24 months, or, if less,'.
 No. 635, in 
clause 208, page 117, line 2, leave out 'nine' and insert 'eight'.—[Hilary Benn.]
 Clause 208, as amended, ordered to stand part of the Bill. 
 Clause 209 ordered to stand part of the Bill. 
 Schedules 12 and 13 agreed to. 
 Clauses 210 to 216 ordered to stand part of the Bill. 
 Adjourned till this day at half-past Two o'clock.